OPINION:
It may be satisfying now to see Special Counsel Jack Smith indict former president Donald Trump for his reprehensible and possibly criminal actions in connection with the 2020 presidential election. But the prosecution, which might be justified, reflects a tragic choice that will compound the harms to the nation from Trump’s many transgressions.
Smith’s indictment outlines a factually compelling but far from legally airtight case against Trump. The case involves novel applications of three criminal laws and raises tricky issues of Trump’s intent, of his freedom of speech and of the contours of presidential power. If the prosecution fails (especially if the trial concludes after a general election that Trump loses), it will be a historic disaster.
But even if the prosecution succeeds in convicting Trump, before or after the election, the costs to the legal and political systems will be large.
There is no getting around the fact that the indictment comes from the Biden administration when Trump holds a formidable lead in the polls to secure the Republican Party nomination and is running neck and neck with Biden, the Democratic Party’s probable nominee.
This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration’s responsibility, as its Justice Department reportedly delayed the investigation of Trump for a year and then rushed to indict him well into GOP primary season. The unseemliness of the prosecution will likely grow if the Biden campaign or its proxies uses it as a weapon against Trump if he is nominated.
This is all happening against the backdrop of perceived unfairness in the Justice Department’s earlier investigation, originating in the Obama administration, of Trump’s connections to Russia in the 2016 general election. Anti-Trump texts by the lead FBI investigator, a former FBI director who put Trump in a bad light through improper disclosure of FBI documents and information, transgressions by FBI and Justice Department officials in securing permission to surveil a Trump associate and more were condemned by the Justice Department’s inspector general even as he found no direct evidence of political bias in the investigation. The discredited Steele Dossier, which played a consequential role in the Russia investigation and especially its public narrative, grew out of opposition research by the Democratic National Committee and the Hillary Clinton campaign.
And then there is the perceived unfairness in the department’s treatment of [President Joe] Biden’s son Hunter, where the department has once again violated the cardinal principle of avoiding any appearance of untoward behaviour in a politically sensitive investigation. Credible whistle-blowers have alleged wrongdoing and bias in the investigation, though the Trump-appointed prosecutor denies it. And the department’s plea arrangement with Hunter came apart, in ways that fanned suspicions of a sweetheart deal, in response to a few simple questions by a federal judge.
These are not whataboutism points. They are the context in which a very large part of the country will fairly judge the legitimacy of the Justice Department’s election fraud prosecution of Trump. They are the circumstances that for very many will inform whether the prosecution of Trump is seen as politically biased. This is all before the Trump forces exaggerate and inflame the context and circumstances, and thus amplify their impact.
These are some of the reasons the Justice Department, however pure its motivations, will likely emerge from this prosecution viewed as an irretrievably politicised institution by a large chunk of the country. The department has been on a downward spiral because of its serial mistakes in high-profile contexts, accompanied by sharp political attacks from Trump and others on the right. Its predicament will now likely grow much worse because the consequences of its election-fraud prosecution are so large, the taint of its past actions so great and the potential outcome for Biden too favourable.
The prosecution may well have terrible consequences beyond the department for our politics and the rule of law. It will likely inspire ever-more-aggressive tit-for-tat investigations of presidential actions in office by future Congresses and by administrations of the opposite party, to the detriment of sound government.
It may also exacerbate the criminalisation of politics. The indictment alleges that Trump lied and manipulated people and institutions in trying to shape law and politics in his favour. Exaggeration and truth-shading in the facilitation of self-serving legal arguments or attacks on political opponents have always been commonplace in Washington. Going forward, these practices will likely be disputed in the language of, and amid demands for, special counsels, indictments and grand juries.
Many of these consequences of the prosecution may have occurred in any event because of our divided politics, Trump’s provocations, the dubious prosecution of him in New York State and Smith’s earlier indictment in the classified documents case. Yet the greatest danger comes from actions by the federal government headed by Trump’s political opponent.
The documents case is far less controversial and far less related to high politics. In contrast to the election fraud case, it concerns actions by Trump after he left office, it presents no First Amendment issue and it involves statutes often applied to the mishandling of sensitive government documents.
Smith had the option to delay indictment until after the election. In going forward now, he likely believed that the importance of protecting democratic institutions and vindicating the rule of law in the face of Trump’s brazen attacks on both outweighed any downsides. Or perhaps he believed the downsides were irrelevant — “Let justice be done, though the heavens fall.”
These are entirely legitimate considerations. But whatever Smith’s calculation, his decision will be seen as a mistake if, as is quite possible, American democracy and the rule of law are on balance degraded as a result.
Watergate deluded us into thinking that independent counsels of various stripes could vindicate the rule of law and bring national closure in response to abuses by senior officials in office. Every relevant experience since then — from the discredited independent counsel era (1978-99) through the controversial and unsatisfactory Mueller investigation — proves otherwise. And national dissensus is more corrosive today than in the 1990s, and worse even than when Mueller was at work.
Regrettably, in February 2021, the Senate passed up a chance to convict Trump and bar him from future office, after the House of Representatives rightly impeached him for his election shenanigans. Had that occurred, Attorney General Merrick Garland may well have decided not to appoint a special counsel for this difficult case.
But here we are. None of these considerations absolve Trump, who is ultimately responsible for this mammoth mess. The difficult question is whether redressing his shameful acts through criminal law is worth the enormous costs to the country. The bitter pill is that the nation must absorb these costs to figure out the answer to that question.
- Jack Goldsmith is a Harvard law professor, a senior fellow at the Hoover Institution and the co-author of After Trump: Reconstructing the Presidency
This article originally appeared in The New York Times.
Written by: Jack Goldsmith
Photograph by: Mark Peterson
©2023 THE NEW YORK TIMES
